(1) The DOC gave sufficient notice of a SBM hearing when its letter informed the defendant of both the hearing date and applicable statutory category. (2) The court rejected the defendant’s argument that SBM infringed on his constitutional right to travel.

Following prior case law, the court rejected the defendant’s arguments that SBM violates prohibitions against ex post facto and double jeopardy.

The trial court did not err by ordering the defendant to submit to lifetime SBM after he pleaded guilty to first-degree forcible rape and other offenses.  In State v. Strudwick, 273 N.C. App. 676 (2020), the Court of Appeals reversed the trial court’s lifetime SBM order, relying on State v. Gordon, 270 N.C. App. 468 (2020) on its way to determining that the State did not demonstrate the reasonableness of the SBM search which would occur decades in the future.  In its opinion, the Court of Appeals indicated that “further guidance” about SBM procedure from the Supreme Court would be helpful.  The Court provided that guidance in this opinion, though it noted that S.L. 2021-138 made major revisions to the SBM program which are effective December 1, 2021. 

The Court first concluded that the SBM scheme, which requires a trial court to determine the reasonableness of an SBM search at the time of sentencing rather than at the time of the actual effectuation of the search, is not facially unconstitutional.  The Court noted that under G.S. 14-208.43 a defendant may petition for release from the SBM program, and further noted that a defendant potentially may be able to have a SBM order set aside through Rule 60 of the North Carolina Rules of Civil Procedure.  

The Court then turned to the reasonableness of the lifetime SBM order in this case, finding that the SBM program’s promotion of the “legitimate and compelling governmental interest” in preventing and prosecuting future crimes committed by the defendant outweighed the program’s “narrow, tailored intrusion into [the] defendant’s expectation of privacy in his person, home, vehicle, and location.”  The court explained, among other things, that the trial court found that the ET-1 SBM device is “relatively small” and “unobtrusive,” and that the SBM scheme only provides the State with the physical location of the defendant, who had a diminished expectation of privacy because of his status as a convicted felon sex offender, for use in the prevention and prosecution of future crimes he potentially could commit.  The Court noted that unlike Grady III, a State’s witness had testified in the defendant’s case “concerning situations in which lifetime SBM would be obviously effective in assisting law enforcement with . . . preventing and solving future crimes by sex offenders.”  Thus, the Court reversed the opinion of the Court of Appeals and kept the trial court’s lifetime SBM order in full effect.

Justice Earls, joined by Justices Hudson and Ervin, dissented.  Justice Earls described the majority’s view that “a court today can assess the reasonableness of a search [of lifetime duration] that will be initiated when (and if) [the defendant] is released from prison decades in the future” as a “remarkable conclusion” and “cavalier disregard” of constitutional protections.  Justice Earls went on to criticize the majority’s application and interpretation of Grady III as well as the majority’s analysis of whether the State had shown that the SBM search was reasonable.

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 18 (2018), the Supreme Court affirmed the Court of Appeals’ decision finding satellite-based monitoring (SBM) to be an unreasonable and therefore unconstitutional search in the defendant’s case. The court modified the lower court decision to apply it not just to the defendant, but also to all sex offenders subject to mandatory lifetime SBM based solely on their status as recidivists who are no longer on probation, parole, or post-release supervision. In this case, the trial judge conducting the defendant’s SBM determination hearing (on remand from the Supreme Court of the United States, Grady v. North Carolina, 135 S. Ct. 1368 (2015)), considered the State’s evidence of the defendant’s prior sex crimes, the defendant’s full criminal record, copies of G.S. 14-208.5 and -208.43, photographs of the equipment the State uses to administer the SBM program, and testimony from a probation supervisor on the operation of the SBM equipment and the nature of the program. The defendant presented statistical reports, Community Corrections policy governing SBM, and an excerpt of SBM training materials for probation staff. Based on the totality of the circumstances, the trial judge entered an order concluding that SBM was a reasonable search as applied to the defendant and that the statute is facially constitutional, and ordered the defendant to enroll in SBM for life.

On appeal, the Court of Appeals concluded that although the defendant’s expectation of privacy was appreciably diminished as a sex offender, the State failed to prove that SBM was a reasonable search as applied to him under the Fourth Amendment. The State appealed as of right.

The Supreme Court declined to address the facial constitutionality of North Carolina’s SBM program in its entirety, instead addressing the program as applied to the narrower category of recidivists to which the defendant belongs. The court rejected the State’s argument that SBM was valid as a special needs search, because the State never identified any special need beyond the normal need for law enforcement, and because the defendant was no longer on probation or parole.

The court also found SBM unconstitutional under a reasonableness analysis, concluding that, given the totality of the circumstances, SBM’s intrusion into the defendant’s Fourth Amendment interests outweighed its promotion of legitimate governmental interests. As to the nature of the privacy interest, the court deemed SBM to be uniquely intrusive—presenting even greater privacy concerns than the cell-site location information at issue in Carpenter v. United States, 138 S. Ct. 2206 (2018). The court rejected the State’s arguments that felons generally and sex offenders in particular who have fully served their sentences have a diminished expectation of privacy. Regarding the character of the complained of intrusion, the court noted the absence of front-end discretion on the part of the judge who imposes SBM and the limited relief available on the back end through the Post-Release Supervision and Parole Commission, which has thus far declined all sixteen requests to terminate SBM filed under G.S. 14-208.43. Finally, as to the nature and purpose of the search, the court noted the State’s failure to provide evidence about how successfully the SBM program advances its stated purpose of protecting the public or any evidence regarding the recidivism rates of sex offenders. The court contrasted that lack of evidence with the copious evidence of student drug use the Supreme Court of the United States found critical in upholding random drug screening in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). Balancing those factors, the court determined that the State did not meet its burden of establishing the reasonableness of SBM for recidivists who have completed their sentence. The court concluded by emphasizing the limited scope of its holding, reiterating that it does not apply to SBM enrollees in other categories (for example, those enrolled based on an aggravated offense), regardless of whether they also happen to be a recidivist, or to enrollees still on parole, post-release supervision, or probation.

Justice Newby dissented, joined by Justice Morgan, arguing that the State’s paramount interest in protecting children outweighed the intrusion into the defendant’s diminished Fourth Amendment privacy interests, and that the SBM program is thus constitutional, both facially and as applied to the defendant.

In this Forsyth County case, defendant appealed the imposition of lifetime satellite-based monitoring (SBM) after his classification as an aggravated offender for convictions for rape, indecent liberties with a child, assault by strangulation, and kidnapping. The Court of Appeals affirmed the imposition of lifetime SBM.

This matter first came before the Court of Appeals in 2018, after defendant appealed the trial court’s imposition of lifetime SBM. After the Court of Appeals’ decision, the North Carolina Supreme Court granted discretionary review based on the State’s petition, and remanded the case in 2019, directing the court to consider State v. Grady (Grady III), 372 N.C. 509 (2019). In 2020, the Court of Appeals issued its second opinion. The Supreme Court again granted discretionary review based on State’s petition, and remanded the case in 2021, directing the court to consider State v. Hilton, 378 N.C. 692 (2021), and State v. Strudwick, 379 N.C. 94 (2021), as well as the General Assembly’s 2021 amendments to the SBM program.

In the current opinion, the Court of Appeals considered the new caselaw and statutory requirements applicable to the imposition of defendant’s lifetime SBM. Applying Hilton, the court explained that lifetime SBM does not represent an unreasonable search for aggravated offenders like defendant. Slip Op. at ¶9. Additionally, the court referenced Strudwick when establishing that the State does not have to demonstrate the reasonableness of lifetime SBM after defendant’s release from prison at some date in the future, only the reasonableness of the imposition in the present. Slip Op. at ¶10. The court then performed a Fourth Amendment analysis in light of the changes to the SBM program and caselaw, determining that “the search of Defendant as imposed is reasonable and therefore withstands Fourth Amendment scrutiny.” Slip Op. at ¶21.

The defendant appealed from his convictions for first degree rape, first degree sexual offense, and taking indecent liberties with a child. The defendant also challenged a civil order requiring lifetime SBM. Defendant was charged with first degree rape of a child, first degree sex offense with a child, and taking indecent liberties with a child that allegedly occurred in 2007 or 2008. The victim told no one about what had happened to her until June 2017, when she was asked if she had ever been raped during the intake process for juvenile justice. The defendant was found guilty of all charges and sentenced to 240-297 months. Following release, the defendant would be required to register as a sex offender for life and to enroll in SBM for life.

(1) The defendant first argued that the trial court committed plain error by allowing that state’s expert witness, who conducted a forensic interview of the victim, to describe the victim’s claim that she was raped as a “disclosure,” and if this vouching for truthfulness had not occurred, then the victim would have been a less credible witness. The court of appeals first noted that the defendant did not object to the use of the word “disclosure” at trial and therefore his argument is reviewed for plain error.

The court explained that North Carolina case law makes it clear that experts cannot vouch for a child sexual abuse victim’s credibility when there is no evidence of physical abuse. The defendant argued the dictionary definition of disclose is “to make known (as information previously kept secret).” Slip op. at 4. The court acknowledged that the word may have that connotation at times, but its use must be considered in the specific context of the evidence in this case. After examining the testimony of the expert, the court determined that the use of the word “disclose” during the testimony “simply does not have the connotation of exposing a previously hidden truth as argued by [d]efendant.” Slip op. at 5. The court came to this conclusion because in this context the “use of the word ‘disclosure’ was simply as part of the description of the interview method and was not “vouching” for the truth of what an alleged victim reveals. Slip op. at 7.

(2) The court of appeals next noted that the defendant had waived his right to argue constitutional issues on appeal because no objection on constitutional grounds was made by defendant’s trial counsel and no notice of appeal was given from the SBM order. However, the court of appeals determined that because a substantial right of the defendant was affected, it was appropriate for the court to invoke Rule 2 to prevent a manifest injustice and thus review the constitutionality of the SBM order. Id. at 15.

The defendant argued that the trial court erred in ordering lifetime SBM because the state presented no evidence that lifetime SBM was a reasonable Fourth Amendment search of the defendant. The court reviewed the issue de novo and under the Grady III framework. The framework involves “reviewing Defendant’s privacy interests and the nature of SBM’s intrusion into them before balancing those factors against the State’s interests in monitoring Defendant and the effectiveness of SBM in addressing those concerns.” Id. at 16. The court of appeals found that the state presented no evidence showing how the lifetime SBM would reduce recidivism and therefore, the state “failed to meet its burden of establishing that lifetime satellite-based monitoring following [d]efendant’s eventual release from prison is a reasonable search in [d]efendant’s case.” Slip op. at 19.

The defendant appealed from judgments entered upon his guilty pleas to second-degree rape and forcible sex offenses, second-degree kidnapping, assault on female, assault by strangulation, obstruction of justice, and intimidating a witness. The defendant appealed by writ of certiorari both the trial court’s imposition of lifetime SBM and the trial court’s imposition of duplicative court costs.

First, the Court of Appeals had to decide whether the defendant’s writs of certiorari properly conferred jurisdiction to the court. The defendant gave oral notice of appeal at his sex offender registration hearing, however he did not specifically raise the issue of court costs or later file a written notice of appeal. The court exercised its discretion to allow the defendant’s petition for writ of certiorari to review the lifetime SBM order because they are “authorized to issue a writ of certiorari ‘to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]’ N.C. R. App. P. 21(a)(1).” Slip op. at 8. Next, the court dismissed the defendant’s oral notice of appeal and instead used its discretion under Rule 21(a)(1) to grant the defendant’s writ of certiorari because it was not the defendant’s fault because it was defendant’s trial counsel who failed to give proper notice of appeal.

(1) The defendant’s first argument on appeal was that the trial court erred in ordering the defendant to enroll in lifetime satellite-based monitoring (SBM) upon his release from prison and contends the state did not meet its burden of proving the imposition of lifetime SBM is a reasonable search under the Fourth Amendment. Slip op. at 7.

The Court of Appeals used Gordon and Griffin II as instructive in addressing Grady III’s application to defendants convicted of an aggravated offense and outside the recidivist context. The court stated that “as this Court did in Griffin II, we employ Grady III as a roadmap, ‘reviewing [d]efendant’s privacy interests and the nature of SBM’s intrusion into them before balancing those factors against the State’s interests in monitoring [d]efendant and the effectiveness of SBM in addressing those concerns.’ Griffin II, ___ N.C. App. at ___, 840 S.E.2d at 273.” Slip op. at 10-11.

In evaluating the defendant’s privacy interests, the court determined the defendant has a diminished expectation of privacy in some respects, such as the privacy of his address or matters material to his voluntary participation in certain activities, because the defendant must submit to lifetime sex offender registration and post-release supervision upon release from prison. However, the court found that the defendant’s expectation of privacy would not always be so severely diminished and following the termination of post-release supervision, the defendant’s constitutional privacy rights will be restored and that will occur at some point before the end of the lifetime SBM order. Therefore, the court found that the “[d]efendant will enjoy ‘appreciable, recognizable privacy interests that weigh against the imposition of SBM for the remainder of’ [d]efendant’s lifetime. Griffin II, ___ N.C. App. at ___, 840 S.E.2d at 274.”

The court next evaluated the intrusive nature of SBM and found that “SBM’s ability to track Defendant’s location is ‘uniquely intrusive’, and thus weighs against the imposition of SBM.” Slip op. at 12 (citation omitted).

In considering the state’s interest, the court determined that the state failed to produce evidence that the lifetime SBM, in this case, effectively served legitimate interests such as preventing recidivism. The court explained that the state did not put forth any evidence showing that SBM served those interests and only provided legal conclusions. Therefore, the court determined “the state’s interest in monitoring [d]efendant by SBM during post-release supervision is already accomplished by a mandatory condition of post-release supervision imposing that very thing.” Slip op. 14.

Finally, the court considered the reasonableness of SBM under the totality of the circumstances and balancing the previously mentioned factors. The court decided that in this case, a lifetime SBM order is an unreasonable warrantless search in violation of the Fourth Amendment and therefore unconstitutional. The court determined that the defendant’s privacy rights, although diminished during post-release supervision, were substantially infringed upon by the lifetime SBM order and the defendant’s interests were not outweighed by a legitimate state interest because the state failed to provide evidence that a legitimate interest would be served by requiring the defendant be subject to lifetime SBM. 

(2) The defendant next argued that the trial court erred by entering duplicative court costs. The court determined the duplicative costs were error because, following Rieger, “when multiple criminal charges arise from the same underlying event or transaction and are adjudicated together in the same hearing or trial, they are part of a single ‘criminal case’ for the purposes of N.C. Gen. Stat. § 7A-304(a).” Slip op. at 15.

Judge Tyson dissented because he did not think the defendant’s petition for writ of certiorari concerning the lifetime SBM order should have been granted because it was meritless. Judge Tyson also dissented from the writ of certiorari concerning the imposition of duplicative court costs because the judgements were not part of a “single criminal case.”

In this rape and sex offense case, the Court of Appeals reversed the trial court’s order imposing lifetime SBM.  First addressing its appellate jurisdiction, the court explained that it allowed the defendant’s petition for writ of certiorari in its discretion, notwithstanding procedural defects in his notice of appeal, because of the “meritorious nature” of the defendant’s argument regarding SBM and the current “tumultuous” state of the law.  Before turning to the merits of the SBM issue, the court also dismissed a portion of the defendant’s appeal having to do with attorney’s fees because an order for those fees had not been entered as a civil judgment. 

As the defendant was not a recidivist and, consequently, the order requiring lifetime SBM was not facially unconstitutional under State v. Grady, 259 N.C. App. 664 (2018) (“Grady III”), the court conducted a reasonableness analysis guided by the principles of Grady III, namely that it is the State’s burden to show that under the totality of the circumstances lifetime SBM is reasonable because its intrusion upon Fourth Amendment interests is balanced by its promotion of legitimate government interests.  As to the intrusion side of the analysis, the court likened this case to State v. Gordon, ___ N.C. App. ___, 840 S.E.2d 907 (2020) where it explained that the State’s ability to show the reasonableness of lifetime SBM is hampered in situations where it is imposed at sentencing but will not be implemented upon the defendant until he or she is released after a lengthy prison sentence.  The court also noted the deeply intrusive nature of the ET-1 monitoring device at issue and the fact that the defendant’s privacy interests will be less diminished following his completion of PRS.  As to the State’s interest in SBM and its efficacy, the court rejected the State’s argument that SBM would discourage recidivism, saying that the State had not presented evidence to support that assertion, either generally or with respect to the defendant specifically.  The court also rejected the State’s argument that lifetime SBM would serve the purpose of keeping the defendant out of “exclusion zones,” noting that his status as a registered sex offender already barred him from many such zones and that his offense involved an adult roommate.  For a lack of evidence, the court also rejected the argument that lifetime SBM would ensure that he abided by an order to have no contact with the victim.  Under the totality of the circumstances, the State did not show that lifetime SBM was a reasonable warrantless search in this case.

In State v. Grady, 372 N.C. 509 (2019), the North Carolina Supreme Court held that lifetime satellite- based monitoring (SBM) is unconstitutional as applied to any person who is ordered to enroll in SBM because he or she is a recidivist. The Court held that SBM in those circumstances constitutes an unreasonable search in violation of the Fourth Amendment. [Note: For a further discussion of the Grady decision, see Jamie Markham, Satellite-Based Monitoring Is Unconstitutional for All Unsupervised Recidivists (Sept. 12, 2019).] The Court of Appeals in this case considered the constitutionality of a 30- year SBM order against a person who was not a recidivist and not automatically subject to SBM. The defendant was convicted of first-degree sex offense with a child and was sentenced to 144 to 182 months in prison. On his release from prison in 2015, he was placed on a five-year term of post-release supervision. The State sought SBM under G.S. 14-208.40(a)(2), which allows a judge to impose SBM for a term of years against a person who has committed an offense involving the physical, mental, or sexual abuse of a minor. Following a hearing, the trial judge ordered the defendant to submit to SBM for 30 years. The defendant did not contest the imposition of SBM for the five-year period of post-release supervision but argued that the imposition of SBM for an additional 25 years was unconstitutional. Applying the reasoning of Grady, the Court of Appeals agreed. It found first that the imposition of SBM for 25 years, although less than the lifelong term at issue in Grady, constituted a significantly lengthy and burdensome warrantless search. It found further that the State did not meet its burden of showing SBM’s efficacy in meeting its professed aims, having failed to offer any evidence that SBM is effective in apprehending sex offenders, preventing new sex offenses, or otherwise protecting the public. The Court also found that the trial judge’s findings in imposing SBM in this case—that the defendant had betrayed the minor victim’s trust, had not completed a sex offender treatment program (SOAR) in prison, and had a moderate-low risk of reoffending based on the Static-99—did not support imposition of SBM. One judge concurred in the result only.

The court reversed the trial court’s order requiring the defendant to submit to lifetime satellite-based monitoring (SBM) on the basis that it ordered an unreasonable search. Though the State mentioned statistics and studies related to the risk of recidivism posed by sex offenders in its argument, it did not present those studies to the trial court, and they were not subject to judicial notice under Rule 201. In addition, the State presented no evidence on the efficacy of SBM to reduce recidivism. 

In a case where the defendant was convicted of taking indecent liberties with a child, the court held that the State failed to meet its burden of showing the reasonableness of the SBM program as applied to the defendant by failing to produce evidence concerning the efficacy of the program. It thus reversed the trial court’s order requiring lifetime SBM.

Citing prior case law, the court held that because the trial court failed to conduct a hearing to determine whether it would be constitutional to subject the defendant to SBM upon his release from a prison sentence for rape, the trial court’s order enrolling the defendant in SMB for life must be vacated and the matter remanded for a hearing. The court rejected the defendant’s argument that the appropriate remedy was to reverse without remanding for a hearing, noting that in this case no hearing whatsoever had been held on the matter.

Following State v. Grady, __ N.C. App. __, __ S.E.2d __ (May 15, 2018), the court held, over a dissent, that absent any evidence that SBM is effective to protect the public from sex offenders, the trial court erred by imposing SBM for 30 years. The defendant proffered an Alford plea to first-degree sex offense with a child. The defendant was sentenced and released from prison. Eleven years later, he was subjected to a “bring-back” hearing to determine whether he would be required to participate in SBM. At that hearing, the trial court ordered the defendant to enroll in SBM for 30 years. The defendant appealed, arguing that the trial court violated his fourth amendment rights by ordering him to submit to SBM for 30 years. The court agreed. Grady held that absent evidence that SBM is effective in serving the State’s compelling interest in protecting the public from sex offenders, the State fails to meet its burden to prove that SBM is reasonable as required by the fourth amendment. Here, as in Grady, the State presented no evidence regarding the efficacy of the SBM program. Having found that the State failed to prove that SBM is a reasonable search compliant with the fourth amendment because it presented no evidence that the program is effective to serve the State’s interest in protecting the public against sex offenders, the court declined to reach the issue of whether the trial court’s order or the State’s evidence regarding the defendant’s individual threat of reoffending meets minimum constitutional standards.

(1) The trial court erred by ordering lifetime registration for the defendant. Although the defendant was convicted of reportable convictions and is therefore required to register as a sex offender, neither sexual offense with a child under G.S. 14-27.4A(a) nor sexual activity by a substitute parent under G.S. 14-27.7(a) constitute aggravated offenses requiring lifetime registration. (2) The trial court erred by ordering lifetime SBM without a determination that the program was a reasonable search as mandated under Grady v. North Carolina, __ U.S. __, 191 L. Ed. 2d 459 (2015). The parties agreed that no evidence was presented to demonstrate the reasonableness of lifetime SBM. The court thus reversed the SBM order and remanded for the reasonableness determination mandated by Grady.

The trial court erred by failing to conduct the appropriate analysis with respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure. The trial court simply acknowledged that SBM constitutes a search and summarily concluded that the search was reasonable. As such it failed to determine, based on the totality of the circumstances, whether the search was reasonable. The court noted that on remand the State bears the burden of proving that the SBM search is reasonable.

The defendant did not receive adequate notice of the basis for the Department of Correction’s preliminary determination that he should be required to enroll in SBM under the version of G.S. 14-208.40B(b) applicable to the defendant’s case. Specifically the notice failed to specify the category set out in G.S. 14-208.40(a) into which the Department had determined that the defendant fell or to briefly state the factual basis for its conclusion.

The State conceded and the court held that the trial court erred by requiring the defendant to submit to lifetime SBM. The trial court imposed SBM based on its determination that the defendant’s conviction for first-degree rape constituted an “aggravated offense” as defined by G.S. 14-208.6(1a). However, this statute became effective on 1 October 2001 and applies only to offenses committed on or after that date. Because the date of the offense in this case was 22 September 2001, the trial court erred by utilizing an inapplicable statutory provision in its determination.

Where the defendant was convicted of first-degree statutory rape the trial court did not err by ordering the defendant to enroll in lifetime SBM upon release from imprisonment. The offense of conviction involved vaginal penetration and force and thus was an aggravated offense.

The trial court erred by ordering the defendant to enroll in lifetime satellite-based monitoring based on its determination that second-degree sexual offense was an aggravating offense. Considering the elements of the offense, second-degree sexual offense is not an aggravated offense.

The trial court erroneously required the defendant to enroll in lifetime SBM on the basis that first-degree sexual offense was an aggravated offense. The court reiterated that first-degree sexual offense is not an aggravated offense. The court remanded for a risk assessment and a new SBM hearing.

Citing State v. Clark, 211 N.C. App. 60 (Apr. 19, 2011), the court held that because rape of a child under the age of 13 necessarily involves the use of force or threat of serious violence, the offense is an aggravated offense requiring lifetime SBM. In dicta, it concluded: “Under the test created by this Court . . . there are no offenses that ‘fit within’ the second definition of ‘aggravated offense,’ i.e., an offense that includes ‘engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.’”

First-degree sexual offense under G.S. 14-27.4(a)(1) and indecent liberties with a minor under G.S. 14-202.1 are not aggravated offenses as defined by G.S. 14-208.6(1a) requiring lifetime satellite-based monitoring.

Following State v. Phillips, 203 N.C. App. 326 (2010), the court held that first-degree sexual offense under G.S. 14-27.4(a)(1) (child victim under 13) is not an aggravated offense for purposes of SBM. To be an aggravated offense, the child must be less than 12 years old; “a child under the age of 13 is not necessarily also a child less than 12 years old.” The court reversed and remanded for consideration of whether the defendant is a sexually violent predator, a recidivist, or whether his conviction involved the physical, mental, or sexual abuse of a minor, and based on the risk assessment performed by the Department of Correction, defendant requires the highest possible level of supervision and monitoring.

Sexual battery is not an aggravated offense for the purposes of SBM.

Applying the “elements test,” second-degree rape committed by force and against the victim’s will is an aggravated offense triggering lifetime SBM.

Following Davison and holding that the pleaded-to offense of indecent liberties was not an aggravated offense under the elements test.

The trial court’s conclusion that the defendant was a recidivist was not supported by competent evidence and therefore could not support the conclusion that the defendant must submit to lifetime sex offender registration and SBM. The trial court’s order determining that the defendant was a recidivist was never reduced to writing and made part of the record. Although there was evidence from which the trial court could have possibly determined that the defendant was a recidivist, it failed to make the relevant findings, either orally or in writing. The defendant’s stipulation to his prior record level worksheet cannot constitute a legal conclusion that a particular out-of-state conviction is “substantially similar” to a particular North Carolina offense.

Assuming without deciding that an elements-based approach should be used when determining eligibility for SBM under G.S. 14-208.40(a)(2), the trial court did not err by requiring the defendant, who had pleaded guilty to solicitation of indecent liberties, to enroll in SBM on the grounds that the offense involved the physical, mental, or sexual abuse of a minor. Interpreting the word “involve,” the court concluded that eligibility for SBM under G.S. 14-208.40(a)(2) includes both completed acts and acts that create a substantial risk that such abuse will occur. The court determined that an attempt to take an indecent liberty has “within or as part of itself” the physical, mental, or sexual abuse of a minor. It concluded that although solicitation of an indecent liberty need not involve the commission of the completed crime, an effort to “counsel, entice, or induce” another to commit that crime also creates a substantial risk that the “physical, mental, or sexual abuse of a minor” will occur, so that such a solicitation has the sexual abuse of a minor “as a “necessary accompaniment.”

As conceded by the State, the trial court erred by ordering the defendant to enroll in SBM. The Static-99 risk assessment of “Moderate-Low” without additional findings by the trial court was insufficient to support the trial court’s conclusion that the defendant requires the highest level of supervision and monitoring.

In this indecent liberties case, the trial court did not err by considering evidence regarding the age of the alleged victims, the temporal proximity of the events, and the defendant’s increasing sexual aggressiveness; making findings of fact based on this evidence; and imposing SBM. Although the trial court could not rely on charges that had been dismissed, the other evidence supported the trial court’s findings, was not part of the STATIC-99 evaluation, and could be considered by the trial court.

(1) The trial court erred by concluding that the defendant required the highest level of supervision and monitoring and ordering him to enroll in SBM for ten years when the STATIC-99 risk assessment classified him as a low risk and the trial court’s additional findings were not supported by the evidence. The trial court made additional findings that the victim suffered significant emotional trauma, that the defendant took advantage of a position of trust, and that the defendant had a prior record for a sex offense; it found that these factors “create some concern for the court on the likelihood of recidivism.” The finding regarding trauma was based solely on unsworn statements by the victim’s mother, which were insufficient to support this finding. The defendant’s prior record and likelihood of recidivism was already accounted for in the STATIC-99 and thus did not constitute additional evidence outside of the STATIC-99. However, because the State had presented evidence which could support a determination of a higher risk level, the court remanded for a new SBM hearing. (2) The trial court erred by concluding that indecent liberties was an offense against a minor as defined by G.S. 14-208.6(1m). However, that offense may constitute a sexually violent offense, and can thus support a SBM order.

The trial court erred by requiring the defendant to enroll in satellite-based monitoring (SBM) for ten years after finding that he required the highest level of supervision and monitoring. The DOC risk assessment classified the defendant as a low risk and only two of the trial court’s four additional findings of fact were supported by competent evidence. One finding of fact involved the defendant’s Alford plea and lack of remorse. Remanding, the court instructed that the trial court may consider whether the defendant’s actions showed lack of remorse but indicated that no authority suggests that the fact of an Alford plea itself shows lack of remorse.  

The trial court erred in requiring lifetime SBM under G.S. 14-208.40(a)(2); that provision subjects a person to SBM for a term of years.

Remanding for a determination of whether the defendant required the highest level of supervision and monitoring. Although the DOC’s risk assessment indicated that the defendant was a moderate risk, there was evidence that he had violated six conditions of probation, including failure to be at home for two home visits, failure to pay his monetary obligation, failure to obtain approval before moving, failure to report his new address and update the sex offender registry, failure to enroll in and attend sex offender treatment, and failure to inform his supervising officer of his whereabouts, leading to the conclusion that he had absconded supervision. Noting that in Morrow (discussed above), the probation revocation hearing and the SBM hearing were held on the same day and before the same judge and in this case they were held at different times, the court found that distinction irrelevant. It stated: “The trial court can consider the number and frequency of defendant’s probation violations as well as the nature of the conditions violated in making its determination. In particular, defendant’s violations of failing to report his residence address and to update the sex offender registry as well as his failure to enroll in and attend sex offender treatment could support a finding that defendant poses a higher level of risk and is thus in need of SBM.”

In determining whether the defendant requires the highest possible level of supervision and monitoring, the trial court may consider any evidence relevant to the defendant’s risk and is not limited to the DOC’s risk assessment. Because evidence supporting a finding of high risk was presented in a probation revocation hearing held the same day (the defendant admitted that he failed to attend several sexual abuse treatment program sessions), the court remanded for an evidentiary hearing as to the defendant’s risk.

Following Kilby (discussed immediately above), on similar facts.

The court rejected the defendant’s argument that the trial court lacked subject matter jurisdiction to hold the SBM hearing in Craven County. The requirement that the SBM hearing be held in the county in which the defendant resides relates to venue and the defendant’s failure to raise the issue before the trial court waives his ability to raise it for the first time on appeal.

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 813 S.E.2d 463 (2018), the court held that although the defendant failed to preserve his argument that the trial court erred by imposing lifetime SBM without determining whether the monitoring was a reasonable search under the Fourth Amendment, the Court of Appeals did not abuse its discretion by invoking Appellate Rule 2 to review the unpreserved constitutional issue. The Court of Appeals concluded that the defendant properly preserved the issue of whether his SBM was reasonable under the Fourth Amendment and that alternatively, if the defendant had failed to preserve the issue, it would invoke Rule 2 to relax Rule 10’s issue preservation requirement and review the claim on the merits. The Court of Appeals then vacated the SBM order without prejudice to the State’s ability to file a subsequent SBM application. The Supreme Court held that because the defendant failed to object to the SBM order on Fourth Amendment constitutional grounds with the requisite specificity, he waived the ability to raise that issue on appeal. However, the Court of Appeals did not abuse its discretion by invoking Appellate Rule 2 to review the unpreserved argument. In this respect the court found it significant that the State conceded that the trial court committed error relating to a substantial right.

The defendant failed to preserve for appellate review his claim that the trial court erred by requiring him to enroll in satellite-based monitoring (SBM). The defendant asserted that the State failed to meet its burden of proving that imposing SBM is reasonable under the fourth amendment. Because the defendant raised no fourth amendment objection at the SBM hearing and the issue was not implicitly addressed or ruled upon by the trial court, it was not preserved for appellate review. In its discretion, the court declined to grant review under Rule 2, reasoning that the law was well-established at the time of the hearing and the State was not on notice of the need to address Grady issues due to the defendant’s failure to raise the constitutional issue.

In this Columbus County case, defendant appealed the denial of his motion for relief from the order imposing lifetime Satellite-Based Monitoring (SBM) for his second-degree rape conviction. The Court of Appeals reversed the denial and remanded to the trial court. 

In August of 2021, the trial court entered an order imposing lifetime SBM on defendant after he completed his sentence for second-degree rape; defendant subsequently appealed the order. In September of 2021, the General Assembly amended the SBM statutes to alter the findings required to impose SBM and to allow an offender to petition for termination or modification if they were sentenced to a term of SBM longer than 10 years before December 1, 2021. After this amendment, defendant filed a motion under Rule of Civil Procedure 60(b)(6) with the trial court to set aside the order imposing lifetime SBM, “arguing the change to the SBM law mere weeks after he was ordered to submit to a lifetime of SBM constituted an extraordinary circumstance warranting relief.” Slip Op. at 2. The trial court held a hearing on the motion, during which the judge expressed the opinion that the pending appeal removed jurisdiction from the trial court. However, in the written order denying the motion, the trial court included a conclusion of law that “Rule 60(b)(6) does not apply because extraordinary circumstances do not exist.” Id. at 4. 

Taking up the Rule 60(b) issue, the Court of Appeals found error in the conclusion that an appeal removed the trial court’s jurisdiction. The court explained that normally, an appeal removes the jurisdiction of the trial court, but there is an exception under Bell v. Martin, 43 N.C. App. 134 (1979), for Rule 60(b) motions. The Bellexception procedure allows the trial court to consider the Rule 60(b) motion and indicate on the record how it would rule:

Should the trial court indicate it would be in favor of granting the motion, the appellant would “be in position to move the appellate court to remand to the trial court for judgment on the motion.” If, on the other hand, the trial court indicated it would deny the motion, that indication “would be considered binding on that court and [the] appellant could then request appellate court review of the lower court’s action.”

Id. at 7, quoting Bell at 142 (cleaned up). Here, the trial court’s statements and order were “at odds with each other,” as it appeared the trial court did not think it had jurisdiction, but subsequently concluded that extraordinary circumstances did not exist to grant the Rule 60(b) motion. Id. at 9. This led the court to reverse and remand for a new hearing consistent with the Bell procedure. 

A defendant’s appeal from a trial court’s order requiring enrollment in SBM for life is a civil matter. Thus, oral notice of appeal pursuant to N.C.R. App. P. 4(a)(1) is insufficient to confer jurisdiction on the court of appeals. Instead, a defendant must give notice of appeal pursuant to N.C.R. App. P. 3(a) as is proper “in a civil action or special proceeding[.]” For related cases, compare State v. Clayton, 206 N.C. App. 300 (Aug. 3, 2010) (following Brooks and treating the defendant’s brief as a petition for writ of certiorari and granted the petition to address the merits of his appeal); State v. Oxendine, 206 N.C. App. 205 (Aug. 3, 2010) (same); State v. Cowan, 207 N.C. App. 192 (Sept. 21, 2010) (same); State v. May, 207 N.C. App. 260 (Sept. 21, 2010) (same); State v. Williams, 207 N.C. App. 499 (Oct. 19, 2010) (same), with State v. Inman, 206 N.C. App. 324 (Aug. 3, 2010) (over a dissent, the court followed Brooks and held that because there was no written notice of appeal, it lacked jurisdiction to consider the defendant’s appeal from a trial court order requiring SBM enrollment; the court declined to treat the defendant’s appeal as a petition for writ of certiorari; the dissenting opinion would have treated the defendant’s appeal as a writ of certiorari and affirmed the trial court’s order.

The defendant was convicted of first-degree rape, kidnapping, and sex offense in Alamance County and sentenced to a minimum 420 months. The trial court ordered lifetime satellite-based monitoring (“SBM”), but no Grady hearing was conducted. The defendant sought certiorari review after failing to give proper notice of appeal. The court granted the petition. The defendant further sought to suspend the rules of appellate procedure to allow review of the unpreserved claim. Noting other cases where Rule 2 of the Rules of Appellate Procedure had been invoked to review claims on similar facts, the Court of Appeals allowed review.

Despite ample guidance from case law regarding the requirements for imposition of SBM, the State did not offer any evidence and the trial court did not conduct any hearing on the issue. The order was therefore vacated. Although the State is prohibited from trying again following an unsuccessful attempt to prove the appropriateness of SBM, here, it had no such opportunity given the lack of a hearing on the issue. The order was therefore vacated without prejudice, allowing the State to seek an SBM order if it desires.

Judge Tyson dissented and would not have allowed review of the unpreserved claim, calling the defendant’s appellate argument “frivolous.” Barnes Slip op. at 17 (Tyson, J., dissenting).